VKernel License
VKERNEL END-USER LICENSE AGREEMENT
Note to user: In this document, “You” means the licensee of the Software (including any enterprise or institution on whose behalf the person using the Software is acting), and “VKernel” means VKernel Corporation, the Licensor of the Software.
BEFORE YOU DOWNLOAD AND USE VKERNEL VIRTUAL APPLIANCE PRODUCTS AND ANY RELATED DOCUMENTATION, INCLUDING USER MANUALS (COLLECTIVELY THE “SOFTWARE”), PLEASE CAREFULLY REVIEW ALL TERMS AND CONDITIONS AND BE SURE YOU UNDERSTAND THEM. CHOOSING “I ACCEPT” AND PROCEEDING WITH THE DOWNLOAD INDICATES YOUR ACKNOWLEDGEMENT THAT YOU HAVE READ THIS LICENSE AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS LICENSE AGREEMENT YOU MUST NOT DOWNLOAD THE SOFTWARE.
1. Title, Intellectual Property Rights. The Software furnished under this Agreement is licensed, not sold or transferred, to You and is protected by the copyright, patent and trade secret laws of the United States and international treaties, and is subject to export control laws and regulations of the United States. VKernel shall have sole and exclusive ownership of all right, title, and interest in and to the Software and any releases, bypasses, fixes, and updates supplied by VKernel.
2. Licenses, Audit Rights.
2.1 General License Grant. Subject to specific terms and conditions set forth in this section 2 and the Agreement generally, VKernel hereby grants to You a terminable, non-exclusive, non-transferable right to use the Software as licensed under this Agreement. The license term depends on whether you obtain a Trial License, Term License, or Perpetual License, as described below.
2.2 Trial License. Under a Trial License, you may, free of charge, download and use the Software to create an unlimited number of host server reports for a license term of fourteen (14) days. The license term begins upon Software activation using the trial license key supplied by VKernel and terminates fourteen (14) days later when the Software will cease to function.
2.3 Perpetual License. If you purchase a Perpetual License, your license term will continue indefinitely unless this Agreement is terminated pursuant to Section 7 below. You may purchase a perpetual license at any time by contacting sales@vkernel.com or by calling VKernel at 866 370 2733.
2.4 Term License. If you purchase a Term License, your license term will start and end on the dates specified on the VKernel invoice associated with your purchase unless this Agreement is terminated pursuant to Section 7 below. You may purchase a term license at any time by contacting sales@vkernel.com or by calling VKernel at 866 370 2733.
2.5 Third Party Software. To the extent any software licensed from third parties, including open source software, (collectively, “Third Party Software”) is provided with the Software, You agree to comply with the terms and conditions of the applicable third party licenses associated with the Third Party Software, in addition to the terms and restrictions contained in this Agreement. All relevant licenses for the Third Party Software are provided at http://www.vkernel.com/license/links.
Your use of the Software shall be deemed your acceptance of the third party licenses.
2.6 Usage limits. Your use of the Software is limited to host servers with usage not to exceed the number of CPU sockets specified in the purchase order submitted to VKernel by You (the Purchase Order”) (whether such CPU is attached to the particular system board by ZIFF socket or “package” in the case of side-mounted CPUs).
2.7 Audit and Information Rights. VKernel may, at any time, require assurances of compliance with the terms of this Agreement, including an annual usage certification. VKernel may audit and collect information relating to Your use of the Software by all or any of the following measures: (a) by executing automatic audit routines embedded in the Software that report to VKernel statistics about your usage of the Software and the operation of the infrastructure on which you are running the Software; and/or (b) upon reasonable notice, by on-site review of your use of the Software. VKernel may use data collected for license compliance, to improve VKernel’s understanding of how the Software is used, and to compile non-client specific statistics. Regardless of method, VKernel will keep data collected strictly confidential, will comply with Your reasonable security requirements and will furnish You a copy of any license compliance report upon written request. If any audit reveals that You have used the Software beyond the scope of Your license, You shall be in material breach of this Agreement. You will cure such material breach immediately by ordering any additional licenses or upgrades required to be in compliance, and paying such additional license fees as necessary to cure the breach in accordance with VKernel’s then current Price List. If You fail to do so, VKernel may terminate this Agreement and all licenses and uses immediately.
3. Restrictions. You may use the Software only in accordance with this Agreement. You may make one (1) copy of the Software for back-up or archival purposes only (the “Archival Copy”). YOU MAY NOT: (a) copy the Software, except as provided above, (b) reverse engineer, disassemble, unbundle, decompile, translate or adapt the Software, (c) modify, distribute or prepare derivative works based on the Software, or any part thereof; (d) remove any proprietary notices, labels, or marks on the Software; (e) publish, display, disclose, distribute, rent, loan, lease, sell, sublicense, transfer, grant or make available all or any portion of the Software, in any form, to any other person or entity; (f) remove any proprietary notices, labels, or marks on or in any copy of the Software; or (g) use the Software in any manner other than as expressly provided herein. Distribution of this Software via the Internet, wide area networks (WANs), bulletin board systems or any other means of distribution of any kind is expressly prohibited unless a duly authorized representative of VKernel consents in advance of and in writing to such distribution.
4. Maintenance and Support. Maintenance and support shall be provided only if selected on the Purchase Order according to the options specified therein and payment is made therefore. Subject to Your payment of the appropriate maintenance and support fee, VKernel will provide either directly during its normal business hours or through its authorized channel partner telephone and e-mail consultation services regarding general operation and use of the Software. You will be entitled to download from the VKernel website on a when and if available basis (a) interim and new releases of the Software and (b) corrections, patches, or bypasses for errors (“bug fixes”) as released by VKernel to the extent and on the same schedule as made generally available to other licensed users of the Software. All interim releases and bug fixes shall be considered a part of the Software and subject to the terms and conditions of this Agreement. Maintenance and support may be renewed annually at the then current list price.
5. Warranties and Disclaimers.
5.1 Limited Software Warranty. Except as disclaimed under Section 5.2, VKernel warrants that the Software will function substantially in accordance with its user documentation for a period of ninety (90) days from the date of download of the Software by You. All software contains errors, however, and You acknowledge that use of any software entails the likelihood of some human and machine errors, omissions, delays, interruptions, and losses, including inadvertent loss of data or damage to media, which may give rise to loss or damage. Good data processing procedure dictates that any program be thoroughly tested with non-critical data before relying on it. Accordingly, VKernel makes no warranty that the Software is error-free. This warranty is only for the benefit of You, the customer, and neither creates or grants any third-party beneficiary rights. VKernel warrants that the Software and related documentation do not infringe on any patents, copyrights or trademarks or constitute misappropriation of third party proprietary information.
5.2 Disclaimer. Except for the limited ninety (90) day warranty on the Software set forth above, You expressly acknowledge and agree that you assume all the responsibility and risk for your use of the Software and the results and performance thereof and your use of any Third Party Software.
THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND. VKERNEL DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM VKERNEL OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. VKERNEL DOES NOT REPRESENT OR WARRANT THAT: (a) THE SOFTWARE OR ANY THIRD PARTY SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE ERROR FREE OR THAT ANY ERRORS WILL BE CORRECTED; (b) THE OPERATION OF THE SOFTWARE OR ANY OF THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED; OR (c) THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SOFTWARE, ANY THIRD PARTY SOFTWARE AND ANY DATA ACCESSED THEREFROM. INFORMATION PROVIDED THROUGH THE SOFTWARE OR ANY THIRD PARTY SOFTWARE MAY BE INACCURATE, OR CONTAIN ERRORS OR OMISSIONS, AND VKERNEL, ITS AFFILIATED ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, OR AUTHORIZED AGENTS AND ALL OF THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS, AND ESTATES, AND VKERNEL’S THIRD PARTY LICENSORS WILL HAVE NO LIABILITY WITH RESPECT THERETO. VKERNEL MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE SOFTWARE OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE SOFTWARE OR THE THIRD PARTY SOFTWARE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SOFTWARE IS TO UNINSTALL AND CEASE USE OF THE SOFTWARE.
6. Limited Liability.
IN NO EVENT WILL VKERNEL, ITS AFFILIATED ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, OR AUTHORIZED AGENTS AND ALL OF THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS, AND ESTATES, AND VKERNEL’S THIRD PARTY LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INSTALLATION OR USE OF OR INABILITY TO USE THE SOFTWARE OR ANY THIRD PARTY SOFTWARE UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT VKERNEL, ITS AFFILIATED ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, OR AUTHORIZED AGENTS AND ALL OF THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS, AND ESTATES, OR ITS THIRD PARTY LICENSORS WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN. YOU FURTHER AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY, AND VKERNEL’S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THIS AGREEMENT SHALL BE LIMITED TO THE REPAIR, REPLACEMENT, OR REFUND OF THE PRICE PAID FOR THE SOFTWARE AT VKERNEL’S SOLE AND ABSOLUTE DISCRETION. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL VKERNEL’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNT PAID, IF ANY, BY YOU FOR THE SOFTWARE.
7. Termination
7.1 Termination of License. VKernel may immediately terminate this Agreement if You have failed to pay the applicable license fee in a timely manner or if You have breached the terms of this Agreement, including, but not limited to, those contained in Sections 2.6 and 3.
7.2 Your Obligations upon Termination. Upon termination of this Agreement, You shall (1) immediately cease use of the Software and (2) return to VKernel or destroy all whole or partial copies of the Software and provide VKernel with a certificate signed by Your duly authorized representative stating that You have returned or destroyed the original and all full and partial copies of the Software. This obligation requires permanent removal of the Software from all media and storage, regardless of form, including but not limited to computers.
7.3 Survival. In addition to those provisions that by their nature are intended to survive any termination or expiration of this Agreement or any license granted hereunder, Sections 2.7, 3, 5.2, 6, 7.2, 7.3, 8, 9, and 10, shall specifically survive such termination or expiration.
8. Confidentiality. Aspects of the Software contains confidential and proprietary trade secrets of VKernel, and You may use the Software only pursuant to the license set forth herein. In addition, You shall not disclose the Software, or any part thereof, to any third party, and shall hold the Software in strictest confidence.
9. Indemnification. You shall indemnify, defend, and hold harmless VKernel and its affiliated entities, and their directors, officers, employees, shareholders, representatives and agents, and all of their respective successors, assigns, heirs, and estates, from and against any loss, liability, costs or expenses (including but not limited to reasonable attorneys fees) arising from or incurred as a result of any third party claims, to the extent that such claims relate to or are based on Your breach of this Agreement or your use of the Software or any Third Party Software.
10. General.
10.1 No Agency. No agency, partnership, joint venture or other joint relation is created by this Agreement. You are not authorized to obligate VKernel or act in the name of VKernel in any way.
10.2 Entire Agreement. This Agreement is the complete and exclusive statement of the parties’ agreement concerning the subject matter of this Agreement, including, but not limited to the terms and conditions governing the licensing of the Software, and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof.
10.3 Modification. This Agreement may not be modified or amended except by a writing signed by authorized representatives of both parties. It is agreed that no usage of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement. The terms of this Agreement will supersede and be superior to any conflicting or contrary terms included in any Purchase Order or other submittal made by You, and any such terms are hereby expressly objected to and rejected.
10.4 Waiver. A waiver by either party of its rights hereunder shall not be binding unless contained in a writing signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
10.5 Severability. If a court of competent jurisdiction deems any provision of this Agreement invalid, it shall be deemed omitted from this Agreement. If any provision is deemed unenforceable by a court of competent jurisdiction, such provision shall be valid to the extent permitted by law.
10.6 Assignment. This Agreement and the rights granted under it may not be assigned or transferred by You without the written consent of VKernel. Any attempt to do so is void and of no force or effect. This Agreement shall be binding on the parties respective successors, permitted assigns, and heirs and estates (if applicable).
10.7 Notices. All notices shall be in writing and shall be sent to the parties at the addresses provided at the commencement of this Agreement (or to such other address as either party may specify in writing) by (i) first class mail, certified or registered, return receipt requested, postage prepaid, (ii) overnight courier service, (iii) messenger, or (iv) confirmed facsimile transmission.
10.8 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts USA as it applies to a contract made and performed therein, without regard to its conflict of laws principles. In no event shall either the United Nations Convention on Contracts for the International Sale of Goods or any adopted version of the Uniform Computer Information Transactions Act (UCITA) apply to, or govern, this Agreement. In the event of any dispute arising under this Agreement, You irrevocably submit to the jurisdiction and venue of the state and federal courts located in Boston, Massachusetts, USA. Any legal action brought under this Agreement shall be conducted in the English language. If the customer/licensee is located in France or Quebec, Canada, the following clause applies: The parties hereby confirm that they have requested that this Agreement be drafted in English. Les parties contractantes conferment qu’elles ont exigé que le present contrat et tous les documents associés soient redigés en anglais.
10.9 Export Compliance. This agreement is expressly made subject to any and all laws, regulations, orders, or other restrictions on the export from the United States of America of the Software or information about the Software that may be imposed from time to time by the government of the United States of America. You shall not export the Software, including documentation, or information about the Software, including documentation, unless in compliance with such laws, regulations, orders, or other restrictions. Without in any way limiting the foregoing, You hereby (1) assure VKernel that You shall adhere to the United States Export Administration laws and regulations and shall not export, re-export or release any software, source code, technical data, or products received from VKernel or the direct product of such software, source code or technical data to any proscribed country listed in the United States Export Administration laws and regulations unless properly authorized by the United States Government, and (2) agree that this assurance will be honored even after expiration of this Agreement. You acknowledge that You are familiar with United States Government export policy and regulations and undertake to be and remain in full compliance with such policy and regulations. You may not export or re-export this product in violation of any applicable laws or regulations including, without limitation, United States export regulations or the laws of the country in which You reside.
10.10 United States Government Rights. If You are a United States Government end-user or are acquiring the Software and documentation on behalf of the United States Government, the following provisions apply: The software and documentation are “commercial items,” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the commercial computer software and commercial computer software documentation are being licensed to U.S. Government end-users (A) only as commercial items and (B) with only those rights as are granted to all other end-users pursuant to the terms and conditions set for the VKernel standard commercial agreement for this software. Unpublished rights reserved under the copyright laws of the United States.
10.11 Submissions. Should You decide to transmit any materials or other information to VKernel (including, without limitation, ideas, concepts or techniques for new or improved services and products), whether as information, feedback, data, questions, comments, suggestions or the like, You agree that such submissions are unrestricted and shall be deemed non-confidential and You automatically grant VKernel and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, use, copy, transmit, distribute, create derivative works of, display and perform the same.
10.12 Injunctive Relief. Without in any way limiting the applicability of any equitable or other relief that might be available for any breach of this Agreement, You acknowledge and agree that money damages would not be a sufficient remedy for breach of any provision of this Agreement relating to confidentialityand restrictions relating to or your use of the Software, and that VKernel shall be entitled to equitable relief, including but not limited to immediate, temporary and permanent injunctive relief, and specific performance, as a remedy for any such breach without having to post a bond or other security. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement, but shall be in addition to all other remedies available at law or equity.
10.13 Paragraph Headings. Paragraph headings contained herein are for information purposes only and are of no independent legal force or effect.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
